Brought to Light: Accused Walks, College Demands Silence

This article is the second in a series of articles devoted to investigating sexual assault at Swarthmore College. In this series The Daily Gazette speaks with survivors, explains Title IX and federal law, analyzes college disciplinary processes, describes changes to college policies, researches sexual assault statistics and their meanings, and looks at educational programs and survivor services on campus.

D, who asked to remain anonymous, says she was raped during the first month of her freshman year, almost four years ago. When she reported her assault, the dean suggested she write a letter to him or have a mediated conversation. When she asked for him to be moved out of her residence hall, the College refused. When she asked to take her complaint to the College Judiciary Committee (CJC), she was told Swarthmore doesn’t expel students for sexual assault. When she went forward with a formal proceeding anyway, the College told her there was insufficient evidence.

Besides P, who told her story for the first part of this series, D is the only other survivor for whom the College has records stating that they made it to the end of a CJC proceeding. The announcement of her case’s outcome, from March 4, 2010, states “there was insufficient evidence to determine that it was more likely than not that a violation occurred.”

Afterwards, nothing happened. The two will graduate together this June.

D says the CJC hearing was the worst thing she’s ever been through. During the hearing, members of the CJC asked about her sexual history. They asked her why she didn’t run away. They questioned her emotional stability.

Like P, D could be risking disciplinary action in speaking about her CJC case, according to Swarthmore’s Student Handbook 2012-2013, which was overhauled in the Summer 2011. It states, “Any breach of confidentiality by a hearing participant, including the complainant or accused, shall constitute a violation of College policy and is an adjudicable offense.”

In an e-mail to The Daily Gazette, Dean of Students Liz Braun clarified that administration’s confidentiality requirements include all aspects of the CJC proceedings: the conversations in preparation for the hearing, what is said during the hearing, and the outcome of the hearing. Complainants are also not allowed to publicly challenge the findings of the CJC, as it may create a hostile environment for the accused. While Braun wrote that she has never had to deal with anyone breaking confidentiality, she wrote it may be something the College would have to address.

“I am very concerned . . . that students are speaking about participating in a CJC case,” Braun wrote. “The confidentiality is a cornerstone of the process, and I sincerely hope that any student . . . would maintain this confidentiality.”

Braun says this policy is in place to protect all students who go before the CJC, so that they know their cases will remain private, so that the reputations of those found innocent are not irreparably harmed, and so that student members of the CJC feel safe and comfortable participating in the proceedings.

But enforcing this policy would be a federal crime.

Under the Clery Act, enforced by the U.S. Department of Education, colleges and universities are prohibited from requiring students who go through college judiciary proceedings to keep confidentiality.

According to Adam Goldstein, attorney advocate at the Student Press Law Center, the Clery Act explicitly states colleges must release information about the outcomes of judiciary proceedings to the participants of that case, and colleges cannot put conditions, such as nondisclosure clauses, on access to that information.

“The position of the Department of Education has been that the access to information can’t be burdened,” Goldstein said. “A prohibition on the disclosure [of CJC proceedings] is a burden on the access to the information, so hypothetically anything can be disclosed from the process.”

Goldstein says the core of this interpretation comes from the regulation requiring colleges to disclose the outcomes of judiciary proceedings to the participants. Since the Department of Education has ruled in the past that requiring students to keep confidentiality is an unjust stipulation to accessing that information, colleges cannot ask participants to keep confidentiality.

The specific line in the Clery Act that Goldstein was referencing is §668.46(11)6B, sometimes referred to as the Campus Sexual Assault Victim’s Bill of Rights, which states, “Both the accuser and the accused must be informed of the outcome of any institutional disciplinary proceeding brought alleging a sex offense.”

While the law does not explicitly state what the complainant or the accused can and cannot say, the Department of Education has ruled to force universities to discontinue using nondisclosure agreements in college judiciary proceedings involving sexual misconduct.

In July 2004, the Department of Education ordered that Georgetown University stop requiring participants of sexual misconduct cases to sign nondisclosure agreements in order to hear the outcome of their cases.

The case was brought against Georgetown University by a student who won her disciplinary hearing against her assaulter. He was expelled and later permitted re-admission, but they didn’t inform her of either decision.

She requested to know the results of the hearing and what sanctions would be put on her rapist in order to decide if she would continue studying at Georgetown. The University refused to tell her unless she agreed not to say anything about it.

In a letter to Georgetown University President John J. DeGioia, the Department of Education wrote that the complainant and the accused must have access to the outcomes and sanctions, “without condition.”

Goldstein said the right to have information is synonymous with the right to distribute it. He said the goal of this part of the Clery Act is to give victims as well as the accused the right to tell the story of what happened to them. If that story includes what a committee member said in a hearing or what a dean told them before going in, they are allowed to share it.

It is for this very reason the University of North Carolina-Chapel Hill is currently under investigation by the Department of Education. The University threatened disciplinary action against a survivor who talked about her hearing after it was over.

UNCCH argued that in doing so, she was creating a hostile environment for her alleged rapist.

The interpretation of the law is up for debate, but as Goldstein puts it, “If I didn’t want to be federally investigated and I was a dean, then I would be disinclined to maintain that policy.”

D says she isn’t sharing her story now because she wants to punish her alleged rapist; she said she never did want to punish him. In an interview, Dean Westphal explained that the CJC’s goal is not to punish, but rather the message it tries to send is, “You made a mistake, you have to take responsibility for it, you have to take some sort of punishment, but the goal is to learn to be a better decision maker, to be a better person from this.”

D just wanted to feel safe on campus. Now, she says she hopes telling her story will help others who need the CJC. When she went through it, she said there was no information about it, no guidance.

For her, the process was gruelling and confusing from the beginning.

When she first reported her rape, it was the second month of her freshman year. Her friends told her to see Dean Karen Henry, then serving as the Gender Education Advisor in charge of advocating for survivors of sexual violence.

When she first met with Henry, D says, Henry was cold and seemed skeptical of her story.

“I think her intentions were good, but I think she had an idea of what legitimate rape looked like and my rape did not fit her criteria,” D said.

For starters, D knew her alleged rapist. She knew him well. They knew each other before they came to Swarthmore together. Once at school, they stuck together in the same friend group, lived in the same residence hall, and had classes together. They had a hooking up relationship. He was someone whom she respected and cared deeply about.

“I think she [Dean Henry] didn’t know what to make of it,” D said. “Because I was also really reticent to talk about any details right up until I had to write them up for the CJC statement.”

It was a Friday night, and they both had had a couple drinks. They had snuck away to an empty room in one of the residence halls to kiss and cuddle. Then he shut the door.

D said she didn’t want to kiss him anymore. She struggled against him but he continued.

“I wasn’t able to move. I was just frozen. I was just trapped, both physically and emotionally. Just trapped,” D said. “I was bleeding and bruised. I remember my head on the floor, and it was terrifying.”

During her CJC hearing, the committee asked her why she let him close the door.

She only told a couple of her friends what had happened. One of their mutual friends told her she probably hadn’t been raped; he said he doubted it. D says she herself struggled to process what had happened to her.

“There was no mistaking [that it wasn’t consensual],” D said. “But it’s easy to couch it in ‘that was just a shitty night.’”

D says she talked to another friend who helped her understand the gravity of what he did to her. Still, she said it was hard to know what to do.

“We were freshman and part of a small friend group, and he had been a very close friend of mine for years,” D said. “It’s hard to sever ties so quickly and to process an act of violence like that.”

When she went to the deans and reported her assault, she asked if they could move him out of her residence hall. D said they told her they wouldn’t be able to move him, but they might be able to find her another room.

She ended up moving, unofficially, to Kyle House, an all-women’s residence hall, where she slept on the floor of her friends’ room.

D says she talked to him afterwards, a fact she said was used against her during the hearing. The first time, it was to talk about what had happened.

“He admitted what he had done. He said he was really sorry, and I felt that,” D said.

Henry, with whom she had been meeting as a counselor, originally suggested informal ways of dealing with the trauma. Henry offered they resolve it through a mediated discussion, which she says Henry told her would compromise her ability to move forward with a CJC case later.

According to the Department of Education Office of Civil Rights, informal resolution is never an appropriate course of action in addressing allegations of sexual violence.

The “Dear Colleague” Letter, published a year after D’s case, states, “In cases involving allegations of sexual assault, mediation is not appropriate even on a voluntary basis.”

She talked to him again about what happened in December; it was to tell him she was going to go to the CJC.

“I started feeling really unsafe. I decided to go to the CJC because it was the only way I could get a safe environment,” D said. “My intent was not punishment. My intent was not ‘I want him to pay.’ I wanted a safe environment.”

During the hearing, D said one of his arguments that he didn’t rape her was that she had been in contact with him and had continued to be friends with their mutual friends.

When she pushed to move forward with a CJC hearing near the end of December, D says Henry told her the chances weren’t good.

“She was very, very, very adamant that Swarthmore does not expel people for this; Swarthmore is very much not about punishing people,” D said.

D says Henry gave her a general overview of the process. D knew she would have to write a statement and read it in front of a committee. She had chosen Henry to be her support person. But she said that beyond that, she was lost.

“This was so frustrating. There’s nothing. There are no resources about the CJC,” D said.

In an interview with The Daily Gazette, President Rebeccca Chopp said she will announce today a website with information detailing the policies and procedures of the CJC.

When D was preparing for the CJC, she says she went to the Men’s Rugby Team for guidance. She says she heard they had gone before the CJC for a streaking incident, and they were the only people she knew who had gone through the judiciary process.

She says Henry told her two days before the hearing that alleged rapist was bringing witnesses. “I didn’t even know we were allowed to have witnesses,” D said.

She was able to have three of her friends write statements for the CJC hearing on her behalf.

The morning of the hearing she received an email from Garikai Campbell, then acting dean and convener of the College Judiciary Committee, who wrote one of her witness’s statements would not be included because the witness used the term “rape” instead of “sexual assault.”

D shared a portion of the letter with The Daily Gazette. It reads:

“I received your 3 witness statements this morning, and have reviewed each. We will include two of the three . . . The third, from ______, is problematic in that it uses the word “rape” to describe the event, where ______ is being officially charged with “sexual assault.” I do feel that the testimony from ______ covers much of the same information and so we hope that the two letters will appropriately address the issues you are hoping to address.”

D said she was shocked, and didn’t have enough time to ask what the difference between “rape” and “sexual assault” was.

“I was raped,” D said. “I still don’t really understand the logic of that particular technicality.”

D’s alleged rapist was charged with sexual misconduct. The 2012-2013 edition of Swarthmore’s Student Handbook does not mention the term rape in any context related to sexual misconduct. Rather, it defines sexual misconduct as a “continuum of behaviors ranging from physical sexual assault and abuse to sexual harassment and intimidation.” The Department of Education defines rape as a form of sexual harassment.

D says the hearing was one of the most difficult moments of her life but also an empowering one.

“It was so painful sit there and to have all this stuff that was ridiculous be asked of me,” D said, but in another way, “just having that experience was really empowering and helpful.”

In an interview with The Daily Gazette, Dr. Chris Krebs, who led the study on sexual assault on college campuses cited in the “Dear Colleague” letter, says mismanaged college judiciary procedures are, unfortunately, still all too common.

“There are still universities where victims and perpetrators go in front of an honor board, and there’s no due process,” Krebs said. “Victims are subjected to questions and accusations in ways that would never be allowed in a court of law, and it’s incredibly humiliating.”

Those types of questions are the ones D says the committee asked her: how much did you drink? How many people have you slept with before? Why didn’t you run away? Did you expect he might do something like this? You say you had sex with him before?

Krebs doesn’t know the ins and outs of Swarthmore’s CJC procedure. He hasn’t read the student handbook or talked to a Swarthmore survivor. But he says to him it seems impossible to imagine, even at a small liberal arts college like Swarthmore, that rape hasn’t occurred. If it has, and if Swarthmore has a zero-tolerance policy for sexual assault as Chopp stated in her email, then the fact that the college has never taken action against a student accused of sexual assault is concerning.

When the hearing was over, Associate Dean of Student Life Myrt Westphal and Campbell called D in to speak with them. They told her the committee did not have enough evidence to believe it was more likely than not that he had sexually assaulted her. They told her it was her word against his.

“I asked them ‘do you know that most rapes happen this way? They said ‘yes,’ and I said, ‘then you know you don’t have a system in place to address this,’” D said.

D said that she asked them if they could move him to another residence hall. She says Westphal and Campbell told her there was nothing they could do, but that the Dean in charge of residential life would try to find her a new room. They never followed up.

D said she spent the rest of the year living in between her room in the same residence hall as him and the floor of her friends’ room.

She still sees him on campus.

“Last semester, I would see him on my hall a lot,” D said. “I went to talk to the deans and they said there was nothing they could do about it.”

The notice of her hearing was not posted until last semester. D says she walked by the display case on the first floor of Parrish Hall where the CJC outcomes are posted every single day to see if it was up. She talked to multiple deans asking for it to be posted. They told her it was probably just an oversight. Last semester when she inquired about it, she says Westphal told her it had probably already been taken down. Today it is posted with the other CJC announcements.

D said that the main problem she faced with her case was an unprepared administration and a system that does not support survivors.

“I was told over and over again that ‘we’re not experts on that,’” D said. “Become an expert or hire an expert.”

“My main problem is that they were obstinately uninformed about how to do this,” D said. “There is no reason why you should be asking me how many people I had sex with.”

Since D went before the CJC, Braun says the College has implemented sexual assault sensitivity training for everyone who serves on the CJC.

Westphal, who oversees formal disciplinary proceedings, says members of the CJC are much more educated now about sexual violence.

“They’re learning at a much deeper level about sexual misconduct. It means that they are more careful and thoughtful about what they ask and what they think,” Westphal said.

According to Braun and Westphal, the purpose of the CJC is to be educational.

“At Swarthmore, I think we look at the judicial process as more of an educational experience,” Westphal said.

Westphal acknowledged that this guiding spirit of the CJC isn’t always sufficient for handling sexual assault cases. Westphal says the process is different from any other disciplinary action with sexual assault because the ramifications of the act are longer lasting, and involve another student, unlike plagiarism. But she says she’s not sure if we as a society have figured out how to handle this kind of misconduct.

Westphal says she believes the CJC process is usually effective. She says students who go through the CJC are not likely to repeat their offense because the process is so traumatic.

“I really think the system that we have is a good one, and a caring one, and an educational one, and a thoughtful one,” Westphal said. “Does it solve all our problems? No.”

Westphal says Swarthmore is always open to suggestions from students.

“I would like it if we could figure out a system that could teach people from their mistakes, keep people safe, and figure out how to alleviate the hurt,” Westphal said.

In a campus-wide email on Monday, Chopp announced the College would hire an outside firm to do an external review of the College’s policies and procedures for addressing cases of sexual assault.

In an interview with The Daily Gazette, Chopp said she has not yet named a firm but had her first conversation a representative from one last night.

She says she’s been in conversations with administrators at Amherst College, who hired an outside firm to review their sexual assault policies following Angie Epifano’s account of her sexual assault in The Amherst Student last semester.

Chopp says her first step will be working with Board of Managers Chair Gil Kemp ‘72 to put together an internal committee made up of students, faculty, staff, and managers to be led by a faculty member.

“Ever since I arrived we’ve been working on these issues,” Chopp said.

She says her first step was hiring Braun as someone who she believed has a background and real commitment to working toward supporting survivors and sexual assault prevention and education.

“We’ve reviewed our policies. We’ve changed our personnel. We’re looking for new people,” Chopp said, noting the first candidate for the open dean position that will oversee the disciplinary process.

She says she’s heard concerns from students, faculty, and staff. D says her concern still is, “my social safety and my emotional safety as a student was not taken into consideration.”

“One of my greatest concerns is how to make students feel safe in coming forward to report,” Chopp said. “I know it’s very difficult.”

Policy changes following the external review probably won’t be instituted for at least another semester. As Swarthmore moves forward, it will have to rebuild trust with the survivor community, something Krebs says is not easy to do.

“When universities handle things [poorly], there are implications and sometimes that takes the form of victims not being comfortable coming forward,” Krebs said. “Other victims hear about it.”

Chopp and Braun will be having an open conversation about community tonight at 8-9:30 p.m. in Eldridge Commons in the Science Center.

In the next article, The Daily Gazette speaks with another survivor, takes a closer look at the purpose of the CJC, and reports on possible legal action.

Photo Illustration by Max Nesterak/The Daily Gazette

Hello, did you like this article? Write for The Gazette! Open staff meetings are every Monday at 7:30 p.m. in The Daily Gazette office on Parrish 4th; You can also email us at editors@daily.swarthmore.edu.

71 comments

First, really good and thorough reporting by DG.
Second, I wonder why colleges insist on treating this particular felony as merely a CJC matter. Would they see murder or manslaughter as something to be mediated, as somethingtoff which any group of students and faculty and staff could investigate and render a judgement? Of course not. It’s silly to even consider it. How about assault and battery? Again, probably not. So why rape or sexual assault? I cannot help but think that colleges presuming to be able to “handle” rape cases is an artifact of a culture that has historically silenced these particular victims by blaming and shaming. Acting as if any sort of mediation is a reasonable solution is ludicrous. Mediation presumes a confrontation between those with equal standing, but inherent in sexual assault is usurpation of the victim’s power by the attacker. Once someone has demonstrated willingness to abuse power, it must be assumed that they will do it again. Mediation cannot work in these situations. I think students (and their parents) should assume that in cases of rape, the college will put its interests in good PR above the safety and well-being of students. They have an interest in minimizing the crime, marginalizing the victim, and treating alleged perpetrators like “normal” students. It means that victms’ need to heal, to feel safe, and to move forward are unlikely to be priorities of the college. Colleges should get out of the business of adjudicating felonies and into the business of student safety and well-being.

The response from the administration is just appalling. I personally know and have worked with many of the current deans during my Swarthmore years, and their response does not fit in with the people I knew. While I realize they have to walk on eggshells given the existing policies, I do not see the need to harass and intimidate the ones the college needs to support. When this happened at Amherst and USC, I thought “Never at Swarthmore.” How naive I was.

Even the idyllic Swarthmore cannot escape from what we are as a society.

Maybe this is not so surprising given the stance the Board and college have taken in several other issues, even over the past couple years. Does it make any sense for alumni to keep on giving to Swarthmore? If the college wants us to keep giving to what we believe is an special place, we need to be convinced that that place still exists and is not just another run-of-the-mill college or university.

I just wanted to give a public thank you to Max for doing such a conscientious job with this series, and being such a strong ally to survivors on this campus. As for D, thank you for sharing your story. I can’t pretend to know what you went through, but many elements seem all too familiar to me, and I know it’s not easy to put yourself out there. Thank you for your brave voice; you are not alone.

Thank you D for sharing your story and the Daily Gazette for bringing up the important but hardly accessible issues into the discussion of sexual violence on campus. You are doing some amazing work for this campus society.

I’m really sorry they did not even move your attacker to a separate dorm afterwards, and left you to take matters into your own hands.

Ignoring all other things that could happen to provide justice for rape, this does not make any sense that the college———-which feeds and houses us, could not even do that for you, to help restore a modicum of safety in your campus environment while trying to heal.

Feel free to ask me anything about what the process was like and I’ll try to answer as honestly as I can. From my experience, it seems like the CJC might be a sufficient system to deal with issues like plagiarism, but for anything even remotely related to sexual offenses, it is absolutely absurd.

Having examined victims of sexual assault, I still think that these are serious crimes and going immediately to an ER to have a rape kit done and reporting to the police gives these crimes the gravity they deserve.

Otherwise the crimes seem to become “soft” and then any kind of punishments are discretionary and left to people in academia who are not prepared or have no real authority.

It’s also worth noting though that not all forms of assault would leave physical evidence, and in some (many?) cases, the fact that some sort of sex took place isn’t in question. Physical evidence is great to have if you can, of course, but if you’re disputing whether the sexual contact was voluntary or not, rather than whether or not it happened, or who perpetrated it, rape kits may not be worth the additional trauma.

In this case cited in the article, the victim was “bleeding and bruised”. Pictures would be taken and this would be used as evidence for a forced sexual encounter.

A rape kit takes DNA specimens from various sites of the body, as long as someone has not washed after the event. The kits are done by nurses who are trained to be empathetic and explain the process and are combined with counseling.

Being “bleeding and bruised” would be evidence for a forced encounter. Reporting it would give more chance for the perpetrator to not repeat his crimes on campus, on her or anyone else.

If it gets down to being seen as a misunderstanding between two people that can be resolved on campus, then that is a different story. But a victim of a true sexual assault deserves to bring the perpetrator to justice.

Rape kit collection is based around the notion that sexual assault is committed by strangers. The philosophy that underpins it is largely tied to the notion that a survivor likely does not know the identity of the assailant, or that that identity somehow needs confirmation through DNA matching. The reality of acquaintance sexual assault makes rape kits almost completely pointless in a large number of cases. Although nurses might be trained to be “empathetic” the reality is that the collection procedures are invasive and lengthy, and the ordeal of having a rape kit taken is frequently an additional trauma on top of the assault, rather than the first step in supporting that survivor. (Many survivors also report that their nurses were far from empathetic.)

And your comment about “true sexual assault” is absolutely horrifying.

Can anybody answer me this? I might have missed it in the 1st article of the series, but… is there some administrative reason preventing law enforcement from getting involved? Or is taking that route simply not a path that victims of sexual assault on campus choose to take? Why do we even have a ‘system of inquiry’ for dealing with sexual assault on campus, when it seems to me that it is woefully inadequate? I mean, none of these deans and medical staff are trained medical professionals, psychologists, or anything approaching judicial figures. Why try to poorly emulate a court of law with unclear policies, slipshod ‘evidence-collecting’ and witness testimonials, and shady hearing on a campus tiny enough for news and rumors to spread like wildfire, when we (at least in theory) have local police and courthouses to handle this?

Dealing with the police and the law and dealing with the school judicial process are two different routes to take, and they’re not mutually exclusive. There are a lot of personal and cultural reasons why someone might not go to the police.

-bad associations with law enforcement/feeling unsafe at the hands of the police (Police departments tend to have really shitty histories w/r/t sexual assault cases. It’s not all Law and Order SVU. Also, people who are queer/trans/brown/poor/foreign/etc. may have either had bad experiences with the police, or have a bad taste in their mouths about the police.)

-going through the legal system is a very long, very expensive, very invasive process. It involves telling your story many times over, to many different people, many of them men (which is not to say, of course, that men are inherently or naturally insensitive about rape, but I know personally that I would feel more comfortable talking about my sexual details with a woman if I were a woman). It may involve incredibly invasive medical examinations. It involves your story, your motives, your mental health, your sexual history being called into question. And, many courts are, unfortunately, influenced by rape culture and unlikely to find someone guilty based on “he said she said” (Or, you know, “she said/he said”, etc. etc.).

-going through the legal system is a much more public process than many survivors are comfortable with. It involves interfacing with a lot of strangers, for one thing, but also, it almost certainly involves telling the survivor’s parents, which can be a really scary thing to do.

-the stakes are really high–jail is a big deal. Deal with the police is a BIG DEAL. Sometimes, after a rape, you want to make the ordeal smaller, not bigger.

The list goes on, and obviously varies for different people.
Obviously, Swarthmore should be ENCOURAGING students to go to the police, not discouraging them, and providing resources for that process when possible. But those are some reasons why a lot of rapes never see a courthouse.

The other thing is that, for many survivors, the priority is affecting change on the school level. For me, it was important that I be able to feel safe in my dorm and in class. I didn’t want anyone to go to jail. I didn’t even want anyone expelled (good thing, too, because Swarthmore doesn’t do that!), so a college judiciary process might be a better choice.

We do have trained medical professionals and counselors, though.

And I’d be careful about a policy requiring the accuser to change dorms–that means that, in order to go to the CJC, the accuser has to leave their housing situation. I think that’s a pretty high bar.

Thanks for your response. Yeah, I knew about most of those reasons, but I was wondering if there was a school administrative reason why people might be discouraged to go to police.

Also, I realize our school has trained medical professionals – I accidentally ‘double-typed’ and couldn’t edit my response; my point was that the Deans are neither trained medical professionals nor psychologists nor judges.

Good point about the CJC requirement, but I would envisage it applying only in cases where at least one party *wants* to leave, and only because both parties are in the same dorm. It would leave the accused (in most cases, I’m assuming) at the mercy of the accuser in terms of housing; but better an annoying yet non-accusatory housing switch for a potentially innocent accused person than forcing a potential victim to endure close proximity to the accused.

I’ve been interested to hear an answer like the one you’ve provided for a while now, but I have a further question about the idea of not going to the police. I’m not being rhetorical here, I’m just wondering how people think about this kind of thing.

Anyway, don’t you have a civic duty to report all crimes to the police? The system may have problems (however it’s worth pointing out that 1) a victim’s sexual history is generally not admissible in court and 2) as far as I know, there’s no cost to a complainant for helping prosecute a criminal case – just minor details) but isn’t it still the case that your legislature has decided for you what action civil society will take against a perpetrator? How is simply refusing to alert the proper authorities (“proper” in this case being defined by your duly and legitimately elected representatives) not a wrongful usurpation of power that is rightfully the state’s? I mean there are legitimate ways of protesting a legal system when that system has problems, but my first thought is that simply deciding to leave the police out of criminal matters is not one of those ways.

To put it more simply, don’t your fellow members of society have a reason to ask and/or demand of you that you handle criminal matters in the way that they, as a whole society, have decided that criminal matters should be handled i.e. initiate and cooperate with all appropriate criminal proceedings?

I think it’s good to continue these discussions–these are good and legitimate questions, and I take them as respectful (I hope you take my answers as such, too!)

A point of order–victims’ sexual histories are constantly (and unlawfully and awfully) being called into question at many stages of the reporting process. Sometimes it is done explicitly in court, sometimes the questioning comes from the police themselves, and often/always from the public–do you remember what happened to the poor Jane Doe in Stuebenville? Or that woman (whose name I forget…) in the “NY Rape Cop” incident?

As far as “wrongful usurpation of power” goes… Well. I think that language in particular doesn’t sit well with me, because rape is, well, a “wrongful usurpation of power”. Rape survivors’ first priority should be to regain their sense of agency. Being a victim of a crime does entail a burden or an obligation. Obviously, I know that this is a grey area, and it is something that I have given a great deal of thought to, particularly as it applies to my own experiences. But it is simply not fair to say that a survivor is morally or ethically obligated to subject themselves to a (legal) system that has proved itself to be unfriendly and unhelpful and, at times, extremely damaging.

Personally, I say to my “fellow members of society”, I will open up my private struggles to the legal system when “you” (and, obviously, there is no real “you”, it’s up to all of us) put an end to rape culture and make it safe for me to do so.

I can appreciate that you’re trying to make this about ideas and ideals. I had a similar conversation earlier this semester with a guy who was pushing the idea that our conversation should be a “discourse,” and that it was about something bigger or more important than my own emotional baggage related to the topic of this “discourse.” He’s really lucky that I didn’t break his nose.

No offense, but while you might see the tack that you’re taking as being more intellectual, or about something nobler than just the nitty-gritty individual emotions that happen in the wake of an assault, what you are actually doing is completely erasing the actual experiences and responses of the people involved.

You’re telling me that survivors have a responsibility to society? I say no. Society has a responsibility to survivors, and we fail in that responsibility constantly. Until we step up our game and properly support survivors–not to mention fulfill our duty of preventing those assaults in the first place–I don’t think survivors owe society a damn thing. This should be about the survivors. This isn’t about you.

And I find it really hurtful that you would try to suggest that a rape survivor’s not coming forward to the police is somehow anti-social, or breaks whatever social compact we supposedly have as a society, or whatever. As if that’s somehow deviant behavior?

What about people who are unable to report their assaults in the immediate aftermath of the trauma, but after a period of time are more stable and willing to talk? In most cases these individuals are laughed out of the police stations due to a lack of evidence. Shouldn’t these students have some form of recourse–if not on the level of civil society, at least within their own college?

Hannah makes a good point (they’ve all been good points), but I’d like to add a couple more.

The law only has one kind of punishment – jail or probation. It doesn’t offer counseling, or anything that would help the rapist/assaulter/whatever you want to call them to improve, to fix the situation. That’s not the kind of response I was every interested in with my case, and from the people I’ve talked to and the comments on all the wonderful gazette articles recently – these and Jane Doe’s – it doesn’t seem to be a form of “justice” that many of us find appealing.

Additionally, the costs of prosecution are astronomical. For the processing of a rape kit alone, it can cost more than $4,000 (http://jezebel.com/5927962/treatment-for-rape-without-insurance-costs-more-than-some-good-used-cars), and that’s obviously before you know if they’ll find anything. Not every case has physical evidence, and if it’s assault rather than rape, the likelihood of that kind of evidence is close to none. That also completely discounts the trauma and triggering invasive testing can bring up immediately following an attack. Add in legal fees, especially over the amount of time that these cases drag on, and a case could cost more than a semester’s tuition.

I sincerely don’t mean to be insensitive and I go back and forth in my thinking on this. Part of me wants to say “to hell with what the government wants, this is about survivors and their needs”. But for the moment I’m trying to see if we can be any more intellectually serious about making that idea make sense in a more thought out way. That’s all.

I think you are seriously underestimating the overwhelming trauma that rape implies. As a survivor I know that every time I feel obligated to tell my story I break a little, and the more I’m forced to do so, the higher the frequency of my panic attacks. I cannot imagine the damage that would have been done if I had been questioned by police, by lawyers, by skeptics in a public setting. I was fucked up badly enough by the person who hurt me, I didn’t need the intensity of questioning I got from the medical professionals I went to for help with STI testing, and I would not have survived the months and months of legislative proceedings. Thinking about it alone makes me terrified. There is a strange balance to be found between individual rights and collective rights, but I can tell you from personal experience that what you are suggesting is directly dangerous to people who have already been hurt in the most dangerously emotional violation possible.

I very much appreciate your response, and I do mean to raise these questions respectfully. I was hoping that this is far enough down in the comments section that it doesn’t hijack the space for survivor supporters.

Anyway, as far as your point of order, I’m certainly not disputing that society at large will judge a survivors’ sexual histories nor am I denying that the police will do the same. However, I just worry that a person could take this point too far. By the time you get to a prosecutor who handles sexual assault cases, you’re dealing with someone who probably takes these issues extremely seriously, seriously enough to make a career out of it. I mean that to be encouraging for what it’s worth. I don’t know what to say about judges and juries on this point. It probably varies.

>As far as “wrongful usurpation of power” goes… Well. I think that language in particular doesn’t sit well with me, because rape is, well, a “wrongful usurpation of power”. Rape survivors’ first priority should be to regain their sense of agency. Being a victim of a crime does entail a burden or an obligation. Obviously, I know that this is a grey area, and it is something that I have given a great deal of thought to, particularly as it applies to my own experiences. But it is simply not fair to say that a survivor is morally or ethically obligated to subject themselves to a (legal) system that has proved itself to be unfriendly and unhelpful and, at times, extremely damaging.

It’s like, I understand that this is the opinion, but I’m not satisfied that there’s any argument here. Not that there couldn’t be, I just haven’t heard any yet. I mean yes, rape is a wrongful usurpation of power. But that doesn’t explicitly have anything to do with whether a person has a right to decline to initiate criminal proceedings. If you think that provides an *implicit* right not to initiate criminal proceedings, then I’d be interested to hear why. In fact, that’s basically just another way of putting the original question. And again, you say it’s not fair to say that a survivor has any obligations to submit themselves to a legal system – again, why not? My point in raising this question is to try to go deeper than just bald assertions.

And finally, same basic point again, I agree there is rape culture. What does that have to do with the fact that other members of society want all of us to force perpetrators of crimes to faces the legal consequences of their actions? In other words, yes the system doesn’t work well for survivors. But how does it follow from the fact that the system doesn’t work well that you have the option (morally speaking) to not use it at all? What principle am I missing here?

As a follow-up, regardless of what the outcome of a judicial hearing like this is, you’d think the college would be able to find a way to balance their desire to ‘protect the reputation of the innocent’ AND the sanity of the accuser/victim by simply instituting a global policy of moving BOTH people to different dorms. I find it horrible that the alleged victim (based on what I read, *definite* victim, but we should also not judge based on input from one side to an article) was forced to keep seeing the accused and then go sleep on the floor of a friend’s dorm… just because the administration couldn’t get its sh*t together.

Moreover – wow, great job on the Deans’ parts with meeting a possible victim with such sensitive skepticism and noninvasive personal questions that have sooo much to do with the incident at hand! /s

“When D was preparing for the CJC, she says she went to the Men’s Rugby Team for guidance. She says she heard they had gone before the CJC for a streaking incident.”

I was involved in this case as a student and ‘streaking’ is a gross mischaracterization of what happened. Try ‘destruction of property’ and ‘assault and battery.’ It is appalling to me that this is the only resource D felt she had in preparing to go before the CJC. That incident ended in a “mediated” conversation between the men’s and women’s rugby teams (with no mediator) where they actually said with straight faces that they “just needed safe space to let off their male aggression.” This was after a process where we were repeatedly told by the deans that ‘boys will be boys.’

I’m glad the DG is covering this in such depth and hopeful that some actual change will be made by current administrators.

Thank you so much for sharing, D. I am so sorry about what happened. I also can’t believe that Garikai Campbell sent you an email saying that a witness statement could not be use because it used the word “rape.”
As a member of the CJC, I can also attest to the issues of the CJC and also add that the sensitivity training is not enough to deal with sexual misconduct cases at Swarthmore.
This needed to be heard.

As someone who went through a CJC hearing, I agree that the current system is woefully inadequate. However, what should we put in it’s place? The reality is that a small school like Swarthmore is not designed to administer a complex judicial system that handles cases from plagiarism to sexual assault, including an appeals process. We don’t have faculty who “investigate” crimes, a full-time staff with a strong legal background to lead the arbitration, or lawyers to serve as prosecutors and defenders. These committees are comprised of volunteer faculty and a student or 2 (one of the heads of facilities was on my committee).I think that the administration described the CJC as “educational” because that is its traditional purpose – to handle plagiarism cases in way that corrects the students behavior without expelling them. The much needed exposure and discussion about sexual assualt on Swarthmore campus begs a lot of difficult questions about how we can reform this system to deal with this common, violent and highly personal crime.

I know the Title IX folks are there to enforce Title IX (yeah, sorry, obvi…), and work to clarify to students and the college what steps should be taken, but I don’t know about the role of the coordinator in the actual CJC hearing process. Do you? Or does anyone?

When a sexual assault is reported, it goes to the Title IX coordinator FIRST. An investigation is conducted and she writes a report based on the findings of the investigation. The investigation includes interviews with both the complainant and the person the complaint/accusation is about, but other people are interviewed as well (witnesses, etc) based on the particulars of the individual case. If there are conflicting versions of events told by the different parties in that investigation, they are presented alongside one another on equal footing. If the case is brought to the CJC, that report is submitted as evidence.

This is just a fantastic article. For years my survivor friends had been telling me how horribly they were treated by the administration after being assaulted, and this ties all of their concerns together succinctly.

It’s disgusting to me that individuals in the administration think that CJC action against perpetrators of sexual misconduct should be “educational.” This just reifies their blatant disregard for survivor’s emotional security.

I hope President Chopp and Dean Braun realizes that this “spring of our discontent” is truly a necessary part of maintaining the integrity and intellectualism of Swarthmore.

It was only a matter of time for these discussions to happen, for this “spring” to happen, because it they are the result of years and years of ill-informed policies that help noone. Basically, the College’s current policies suck. Like, I would give them an F grade.

I am very glad to hear that President Chopp is taking this discussion on campus very seriously and will be doing an independent, external review of Swarthmore’s policies. I am glad that she is not trying to hide these discussions under the rug. However painful and nasty these conversations can become, I absolutely think that they are vital to retaining and growing the vitality of Swarthmore. So gigantic KUDOS to the Daily Gazette writers and editors for being an integral part in this discussion. Swarthmore truly needed it.

Respectfully going to disagree. I’ve had two really difficult housing situations and in both cases she has been able to find me a solution. I think she’s one of the few good ones, at least based on my own experience.

Why do you want to stop these articles? They are clearly labeled trigger warning in order to protect people who don’t feel comfortable reading them, they take into account legal requirements in order to put individual stories into larger context, and they are shared by individuals attempting to make better an inadequate system. We should always strive to be better, no? I would love to better understand your full perspective

Why?
I think this is fantastic. People need to know about these things happening, and nobody knows. So many people on this campus have been silent for too long, and they’re finally speaking out.
These articles need to happen until something changes, until policy actually reflects the “support” that Swarthmore claims they provide students with.
You are trying to silence people. You are devaluing a voice that needs to be heard, and you should be ashamed of yourself.

This is a great article that highlights Swarthmore’s need to review sexual assault policies. I have a request of the author, however. Max, you say that the interpretation of the Clery Act is up for debate. Can you provide us with the other side of the debate instead of giving us a one-sided view of this situation?

Great question, and I apologize for the ambiguity. By “up for debate,” I mean Swarthmore’s confidentiality policy could still be defended in court. The U.S. Department of Education has not explicitly stated what participants in college judicial proceedings can and cannot say. According to Goldstein, we can only understand the ramifications of the law through how the DOE has ruled in the past.

In a quote that didn’t make the article, Goldstein says, “We only really know what the Department of Education has adjudicated, and they have gone after schools that have required students to sign blanket confidentiality agreements for the process.” Since it’s not the same case, the College could put forth an argument for its confidentiality policy, but it doesn’t appear as if the DOE would accept it. P and D also didn’t sign a written non-disclosure agreement, though the confidentiality policy is stated in the Student Handbook.

Thanks Max. I think this makes it clear to me part of the reason why Swarthmore has been able to keep this policy without getting into trouble. The interpretation is reliant on precedence, and as such, can only be decided on a case by case basis. Nevertheless, Swarthmore should not just be minimally complying with the law on these issues.

During RA training from 2010-2012 (my years as an RA) every dean who talked with us particularly Rachel Head and Myrt Westphal stressed to us the importance of moving a victim away from the dorm that he/she/ze was sexually assaulted, particularly when the perpetrator lived in close proximity.

Based on Rachel Head’s track record of successfully moving people with less than legitimate “allergies” , I feel like she would be more diligent in a situation of sexual assault.

So, it won’t let me nest another reply, but this is meant to be in response to Nick ’10.

Nick, you said “Maybe I’m missing something, but it seems to me like a rape kit would be very relevant here, regardless of whether or not the assailant is known. Bruising and bleeding caused by forced entry has nothing to do with the parties’ relationship, and for that reason it would be especially useful as evidence when it’s only the ‘forced’ part that is in question. The commenter ‘Question’ above said that juries are unlikely to believe a victim’s testimony – in that case, a rape kit could provide backup that’s hard to ignore.”

Yes, you’re missing a ton. There are plenty of situations where a lack of consent does not necessarily imply physical force that would leave the kind of evidence that a rape kit would find.

If someone panics and freezes up, if they’re not fully conscious, if they are confused, if the rapist is someone they care about and so they don’t know what to do, if the rapist is someone with intimidating power (institutional power, physical strength, has a weapon, etc.), and so on, they might not physically struggle.

But that doesn’t mean it’s not rape. If there’s no consent, then it’s rape, and that’s the only requirement.

And so while rape kits might be useful in certain circumstances, they are by no means the ultimate tool for seeking justice for survivors.

Just more on the minor detail of the system – Juries decide facts, they don’t sentence. Judges sentence. And in serious felonies like rape cases there are mandatory minimum sentences (in the case of rape, I believe it is 5 years plus 5 years parole (parole means that if you commit a singe crime of any level of severity while out on parole, you go back in for the remainder of the time on the original charge plus the time on your new charge)). So there’s not much opportunity to be magnanimous. The only thing a complainant could do would be to ask the prosecutor to withdraw the rape charge in the beginning and only prosecute the lesser charges (sexual assault, simple assault etc.) from the start. But then you don’t really get the “rape” charge that you presumably want. And of course complainants have zero final say in this matter. It’s entirely up to the prosecutor as far as what actually happens, complainants can only ask.

In another part of this thread I was bringing up the idea of “yeah the system has problems, but do you still have a choice not to go to the cops just because of that?” But I was never disputing that the system has problems.

Maybe I’m missing something, but it seems to me like a rape kit would be very relevant here, regardless of whether or not the assailant is known. Bruising and bleeding caused by forced entry has nothing to do with the parties’ relationship, and for that reason it would be especially useful as evidence when it’s only the “forced” part that is in question. The commenter “Question” above said that juries are unlikely to believe a victim’s testimony – in that case, a rape kit could provide backup that’s hard to ignore.

Yes, it’s traumatic, and yes, it may not always end up yielding the evidence hoped for, but I still think you’re doing a disservice to other victims by suggesting it’s only useful in cases of stranger rape. I know Swat has a mandatory health insurance policy, so that particular argument doesn’t apply here.

I can understand why you wouldn’t want all the publicity and heartache associated with a court case, but I would still encourage victims to go to the police, if not for themselves, then for their fellow survivors; it can provide courage for more people to speak up and it draws broader attention to the issue. If you want to be magnanimous and ask the jury not to give your assailant a lot of jail time upon conviction, fine, but please don’t let your generosity be the main reason for not acting. Judging from the comments on this article, you could at least expect a large outpouring of support from your peers.

Because of the CJC’s demonstrated inadequacy for the task, I think Swat’s role in sexual assault cases should mainly be to support the victim through the filing process, and to provide clear information about the necessary steps and what to expect along the way (both at orientation briefing sessions and upon receiving a report).

Marian: True sexual assault means one that is taken seriously enough to actually report to police and document with physical evidence. Not one that can be interpreted several ways in court or by a college, because it is based on hearsay.

Although I have no idea why a college, and not the US, state or local justice system is not handling these cases. There are few crimes that are handled like this. Even terrorists have their day in court.

I truly hope that the complaint filed by Swarthmore students with the government will result in sexual assault cases being taken out of the auspices of Deans at colleges and universities and into the justice system, where it belongs.

An extremely small number of rapes are “stranger rape”. Most women know their attacker(s). Up to half of women will have evidence of external trauma such as bruises on their bodies. Documenting these, and doing a rape kit, is crucial for justice to take place. Completing a rape kits means getting samples that are physical evidence that can be used in court. “He said, she said” is very weak, and a big reason why these unsubstantiated cases go nowhere.

For anyone on this forum to discourage women from reporting rape to the police and discourage them from getting a rape kits done immediately afterwards is extremely irresponsible, and shows total ignorance of what rape victims need to do if they truly want justice for their attackers.

In response to from a medical perspective, you’re wrong about a rape kit being the only kind of evidence (my god, there’s so much misinformation about the criminal system on this thread). In PA and other states the judge will say to the jury in a rape/sex assault case, “the complainant’s testimony, if believed by you, is sufficient basis on which to convict”. So no, rape kits are not the only kind of evidence. The problem is that rape culture makes people tend not to believe complainants (sometimes, not always – child victims do do well in this regard).

Ictim’To hold weight in court, one needs evidence. If one is not willing to report a sexual assault and document injuries, then this appears less than a real crime, and more than a “tiff” between friends.

Rape kits are evidence. Without that, then these accusations have little weight, and really, should have no consequences. “He said, she said” can be just a lover’s quarrel. Even in that case, although it may seem real to the “victim” the alleged perpetrator should be let off with no penalty, because the “victim” can be fabricating the whole event. Even the sexual encounter, with no physical evidence.

@question you seem well informed and like you are taking this seriously. I appreciate that you are trying to think through these larger issues because they really are complex and worth thinking about. I just wanted to remind you what’s at stake. But on the other side I see that especially in the case of a serial rapist it’s hard to justify not reporting your experience. It’s not an easy question either philosophically or personally

First of all, I don’t know your friend or what he was trying to say. For me this isn’t about anything “bigger” or “more noble”. This is just about reconciling with the idea that there is something problematic about opting out of the system. And that’s true quite generally.

Second, what I’m mostly hearing is that people think the somehow the government has crossed the line from merely messed up to actual illegitimacy. So be it. If that’s the opinion, then that’s the opinion.

I’m not accusing anyone of being anti-social. In fact, I’m not even sure what that word means. As far as breaking the social compact if there is such a thing, yeah that’s basically what I’m worried about. I mean it’s not enough for me to just assume or assert that that doesn’t matter.

Finally, “laughed out of the police station”? I honestly find that hard to believe if you mean it literally. But if you claim you’re not being hyperbolic about that, then okay, I guess I have no choice but to believe you. However, in general, I’m also sensing that a lot of this distrust of the system is based on lack of information about how the system actually works. Fine, you don’t trust the cops? Call the victim advocates which every DA’s office in PA has. They won’t laugh at you. They’ll help you, because that’s all they’re there to do.

Also, now that I’m reading your comment again I notice that you say that the criminal justice system can only give out jail or probation. That’s not true either. There definitely are diversionary programs for all sorts of crimes. You’re right if you’re only referring to first degree felony rape, but for domestic violence and other crimes that fall into that general category (that is, the category of crimes where it’s hard to get complainants to go through with prosecution), there are diversionary programs.

Also, I feel that I’m still not getting my point across. It seems to me that you’re talking about the government like it’s a bad restaurant. Like, hey if you don’t like the food, you don’t have to eat there. But the government isn’t like a restaurant. The government is *sovereign*. I’m not saying that like it’s the end of the debate, I just want to take that idea seriously as we decide whether it’s okay to ignore the solution, however flawed, that it gives us.

Your email address will not be published. Required fields are marked *

Comment

Name *

Email *

Website

Example Widget

This is an example widget to show how the Right Sidebar looks by default. You can add custom widgets from the widgets screen in the admin. If custom widgets is added than this will be replaced by those widgets.